Escolar Documentos
Profissional Documentos
Cultura Documentos
Sean W. Shirley
Balch & Bingham LLP
1910 Sixth Ave N Ste 1500
Birmingham, AL 35203-4642
(205) 226-8761
(205) 488-5604 [fax]
sshirley@balch.com
Table of Contents
I. Alabama................................................................................................................................................. 387
II. Alaska.................................................................................................................................................... 389
III. Arizona.................................................................................................................................................. 389
IV. Arkansas................................................................................................................................................ 390
V. California............................................................................................................................................... 391
VI. Canada................................................................................................................................................... 393
VII. Colorado................................................................................................................................................ 395
VIII. Connecticut............................................................................................................................................ 397
IX. Delaware................................................................................................................................................ 398
X. Florida.................................................................................................................................................... 399
XI. Georgia................................................................................................................................................... 401
XII. Hawaii.................................................................................................................................................... 403
XIII. Idaho...................................................................................................................................................... 403
XIV. ILLINOIS............................................................................................................................................... 405
XV. Indiana................................................................................................................................................... 408
XVI. Iowa........................................................................................................................................................ 411
XVII. Kansas.................................................................................................................................................... 413
XVIII. Kentucky................................................................................................................................................ 415
XIX. Louisiana............................................................................................................................................... 416
XX. Maine..................................................................................................................................................... 418
XXI. Maryland............................................................................................................................................... 419
XXII. Massachusetts........................................................................................................................................ 421
XXIII. Michigan................................................................................................................................................ 423
XXIV. Minnesota.............................................................................................................................................. 424
XXV. Mississippi............................................................................................................................................. 427
XXVI. Missouri................................................................................................................................................. 429
XXVII. Montana................................................................................................................................................. 431
XXVIII. Nebraska............................................................................................................................................... 432
XXIX. Nevada................................................................................................................................................... 434
XXX. New Hampshire..................................................................................................................................... 436
XXXI. New Jersey.............................................................................................................................................. 437
XXXII. New Mexico........................................................................................................................................... 439
XXXIII. New York................................................................................................................................................ 440
XXXIV. North Carolina...................................................................................................................................... 444
XXXV. North Dakota......................................................................................................................................... 445
XXXVI. Ohio...................................................................................................................................................... 447
XXXVII. Oklahoma............................................................................................................................................ 448
XXXVIII. Oregon................................................................................................................................................ 450
The Parental Negligence Doctrine v Shirley v 385
XXXIX. Pennsylvania......................................................................................................................................... 451
XL. Rhode Island.......................................................................................................................................... 452
XLI. South Carolina....................................................................................................................................... 453
XLII. South Dakota......................................................................................................................................... 455
XLIII. Tennessee............................................................................................................................................... 456
XLIV. Texas...................................................................................................................................................... 458
XLV. Utah....................................................................................................................................................... 460
XLVI. Vermont................................................................................................................................................. 460
XLVII. Virginia.................................................................................................................................................. 461
XLVIII. Washington............................................................................................................................................ 462
XLIX. West Virginia.......................................................................................................................................... 462
L. Wisconsin.............................................................................................................................................. 463
LI. Wyoming................................................................................................................................................ 465
I. Alabama
Sean W. Shirley
Thomas R. DeBray, Jr.
Balch & Bingham LLP
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Alabama law, a parent’s negligence cannot be imputed to a child so as to preclude an action by
the child or for its benefit against a third party whose negligent act has injured the child. E.g., Pilkington v. Peking
Chinese Rest., Inc., 596 So. 2d 586, 589 (Ala. 1992) (citing Nunn v. Whitworth, 545 So. 2d 766, 767 (Ala. 1989))
(emphasis added).
However, in an action for wrongful death of a minor, the contributory negligence of the parent pre-
cludes recovery unless the defendant is guilty of more culpable conduct than ordinary negligence, regardless
of whether the parents or the personal representative brings the action. E.g., Peoples v. Seamon, 31 So. 2d 88, 89
(Ala. 1947) (noting that in a suit by a parent in his capacity as such under Alabama’s wrongful death of a minor
statute, his contributory negligence is a good defense); Jenelle Mims Marsh & Charles W. Gamble, Alabama Law
of Damages §37:4 (Oct. 2009), available at Westlaw AL-DAMAGES §37:4.
APPLICATION OF THE DOCTRINE: Contributory Negligence
The doctrine is applied through the state judiciary’s adherence to the principles of contributory neg-
ligence. E.g., Brown v. Piggly-Wiggly Stores, 454 So. 2d 1370, 1372 (Ala. 1984) (noting that Alabama applies the
doctrine of traditional contributory negligence). A plaintiff who negligently contributes to her own injury can-
not recover whatsoever in a negligence action, regardless of whether the defendant was also negligent. E.g.,
QORE, Inc. v. Bradford Bldg. Co., 25 So. 3d 1116, 1126 (Ala. 2009) (emphasis added). Therefore, if a parent’s neg-
ligence contributed to the death of a child, the parent’s contributory fault completely bars him from recovery in
a wrongful death action brought by the parent. E.g., Peoples v. Seamon, 31 So. 2d 88, 89 (Ala. 1947); Jenelle Mims
Marsh & Charles W. Gamble, Alabama Law of Damages §37:4 (Oct. 2009), available at Westlaw AL-DAMAGES
§37:4.
It should be remembered, though, that the contributory negligence of a parent will not be imputed to
the child so as to preclude or limit recovery in actions brought by the child or for its benefit. E.g., Pilkington v.
Peking Chinese Rest., Inc., 596 So. 2d 586, 589 (Ala. 1992) (citing Nunn v. Whitworth, 545 So. 2d 766, 767 (Ala.
1989)).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Contributory negligence is an affirmative defense, and the burden of proof lies with the defendant.
H.R.H. Metals, Inc. v. Miller, 833 So. 2d 18, 26 (Ala. 2002) (noting that the trial court’s instruction to the jury
that “contributory negligence is an affirmative defense, and the defendant has the burden of proving that
defense to your reasonable satisfaction” was proper).
II. Alaska
Michael C. Osborne
ArcherNorris
ACCEPTANCE OF THE DOCTRINE: No.
In Sinclair v. Okata, 874 F.Supp. 1051, 1059, n. 55 (D.Alaska 1994), the District Court, applying Alaska
law, observed that no Alaska Court had held that a parent’s alleged negligence would be imputed to an injured
child who sues for damages.
APPLICATION OF THE DOCTRINE:
Alaska is a pure comparative negligence state. Alaska Stat. §09.17.060.
Prior to the 1986 Tort Reform Act, Alaska allowed comparative negligence as a defense in products lia-
bility actions only under limited circumstances. Smith v. Ingersoll-Rand Company, 14 P.3d 990, 992-993 (Alaska
2000). Under the 1986 Tort Reform Act, contributory fault chargeable to the plaintiff diminishes proportionally
the amount awarded as compensatory damages, but does not bar recovery. Id., at 994. The Act applies to strict
products liability cases. Id.
III. Arizona
Patrick X. Fowler
Snell & Wilmer L.L.P.
ACCEPTANCE OF THE DOCTRINE: Yes.
A parent who is negligent in causing an injury to, or the death of, their child may be subject to a reduc-
tion of any damages award levied against the defendant in proportion to the parent’s level of fault. See, e.g., Her-
nandez v. Castles N’ Coasters, Inc., No. 1 CA-CV 08-0715, 2009 WL 2461296, *1 (Ariz. Ct. App. 2009); Picaso v.
Tucson Unified School Dist., 217 Ariz. 178, 181, 171 P.3d 1219, 1222 (Ariz. 2007); A.R.S. §12-2501, et. seq. (2010).
Additionally, Arizona has abolished parent-child immunity and therefore children can sue their par-
ents in tort, as well as parental fault being considered for comparative negligence purposes. Broadbent by
Broadbent v. Broadbent, 184 Ariz. 74, 81, 907 P.2d 43, 50 (Ariz. 1995). The Broadbent court established a “rea-
sonable parent test,” in which a parent’s conduct is judged “by whether that parent’s conduct comported with
that of a reasonable and prudent parent in a similar situation.” Id.
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault
The doctrine is applied through the principle of comparative negligence. The state of Arizona adheres
to the doctrine of pure comparative negligence. See, A.R.S. §12-2505 (2010); Zuern By and Through Zuern v.
Ford Motor Co., 188 Ariz. 486, 937 P.2d 676 (Ariz. Ct. App. 1996). No matter how much at fault a plaintiff is, he
or she is entitled to recover the percentage of fault attributed to any other party as opposed to no recovery. The
principles of comparative fault are applied through Arizona’s apportionment statute. A.R.S. §12-2506 (2010).
The fault of both parties and non-parties at fault are compared. Id.; Piner v. Superior Court In and For County of
Maricopa, 192 Ariz. 182, 188, 962 P.2d 909, 915 (Ariz. 1998).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
IV. Arkansas
Carson Tucker
James O. Howe
Wright, Lindsey & Jennings, LLP
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Generally, the negligence of a parent is not imputed to the child. Miles v. St. Louis, I. M. & S. Ry. Co., 90
Ark. 485, 119 S.W. 837 (Ark. 1909); and the negligence of a parent is not imputed to the child’s estate. Nashville
Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301 (Ark. 1911). “However, in the death of a minor, the fault of one
parent is imputed to the innocent parent to the extent of reducing, but not barring, recovery since they share a
community of interest in the supervision of the child.” Howard W. Brill, Arkansas Law of Damages, §34:1 at 671
(5th ed. 2004) (endnotes omitted).
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault
A jury finding that a parent is more than 50 percent at fault will not bar recovery. Stull v. Ragsdale, 620
S.W. 2d 264, 273 Ark. 277 (Ark. 1981). An innocent parent’s award will be reduced by the extent that the other is
found at fault. Id. That is, if a negligent parent is found to be 75 percent at fault, the innocent parent will receive
only 25 percent of the jury’s award. Id.
V. California
Merton Howard
Hanson Bridgett LLP
Acceptance of the Doctrine: Yes, partially.
Parents’ negligence is not imputed to their child in the child’s action for general damages resulting from
personal injury. (See Hasson v. Ford Motor Co. (1977) 19 Cal. 3d 530, 552.) However, the negligence of a par-
ent may nevertheless be relevant in determining whether other persons are liable for such injuries. (See Akins v.
County of Sonoma (1967) 67 Cal. 2d 185, 198; Morningred v. Golden State Co. (1961) 196 Cal. App. 2d 130, 138.)
Insofar as the minor’s action seeks to recover special damages for medical expenses paid by his or her parents for
the minor’s benefit, the action is subject to the defense of comparative negligence on the part of the minor’s par-
ents. (See Mattox v. Isley (1952) 111 Cal. App. 2d 774, 779; Morningred, 196 Cal. App. 2d at p. 139.)
VI. Canada
Lindsay Lorimer
McMillan
Parental Negligence
In contrast with some U.S. jurisdictions, Canadian law does not recognize a distinct doctrine of paren-
tal negligence, nor does it provide for parental tort immunity through blocking statutes. No special rules or
restrictions apply to the scope of litigation involving parent defendants. Parents may be sued for contributory
negligence in the same manner as any others who have contributed to the wrongdoing.
Joint and Several Liability
Defence counsel should be aware that provincial legislation provides for joint and several liability in
circumstances where multiple parties are responsible for an injury. Although the details may vary between
provinces, the general rule is that a plaintiff is entitled to seek the entire damage award from any responsible
defendant, less any harm attributed to the plaintiff ’s contributory negligence, regardless of that defendant’s
share of the liability. That defendant may then seek contribution from other responsible persons for their shares
of the liability. Since joint and several liability is statutory, a party seeking to rely on the doctrine must plead the
appropriate provincial act.
This was the case in Sandhu v Wellington Place Apartments, 2008 ONCA 215, where an infant plaintiff who suf-
fered catastrophic brain damage but retained a normal life expectancy was awarded total damages, interest and
costs in excess of $17 million—the highest personal injury damage award ever given in Ontario.
For non-property torts, the common law of contributory negligence still applies. Actions relying on these pa-
rental responsibility regimes must be commenced in small claims court, with all the attendant procedural and
jurisdictional limitations; see Court of Queen’s Bench Small Claims Practices Act, CCSM c 285; Court of Justice Act,
RSO 1990, c C43; Small Claims Act RSBC 1996, c 430.
[1999] 2 SCR 753.
(2002), 23 CCLT (3d) 40 (Ont Sup Ct J); see also R (B) v R (L), 2004 ABQB 93; Preston v Chow, 2007 MBQB
318.
VII. Colorado
John W. Grund
Grund Dagner, P.C.
ACCEPTANCE OF THE DOCTRINE: Yes, where: (1) the parent’s conduct is willful or wanton; or (2)
the injury resulted from a parent’s conduct in a business or employment capacity.
VIII. Connecticut
Vincent A. Errante, Jr.
Darger & Errante LLP
ACCEPTANCE OF THE DOCTRINE: No.
Under Connecticut law, when a child has been injured by a product and has brought a products lia-
bility claim against the manufacturer of the product, parental negligence is not a defense or a bar to a child’s
recovery. Kuzion v. Saybrook Country Bam, Inc., 2001 Conn. Super. Lexis 283 (2001); Diaz v. Tavares, 1993 Conn.
Super. Lexis 2839 (1993).
X. Florida
H. Hamilton (“Chip”) Rice, III
Bush Graziano & Rice, P.A.
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Florida law, a parent’s negligence may not be imputed to a child plaintiff so as to bar or reduce
recovery by the child or on behalf of the child. See, e.g., Orefice v. Albert, 237 So.2d 143 (Fla. 1970) (citing Jackson-
ville Elec. Co v. Adams, 39 So. 183, 185 (Fla. 1905)); Florida Power and Light Co. v. Macias, 507 So.2d 1113, 1116
(Fla. 3d DCA 1987). However, due to operation of the comparative fault doctrine, a child’s award of damages
The Parental Negligence Doctrine v Shirley v 399
can be reduced by any percentage of fault assigned to a negligent parent. Y.H. Investments, Inc. v. Godales, 690
So.2d 1273 (Fla. 1997) (Wells, J and Kogan, CJ, dissenting). See Application, below.
Additionally, under the doctrine of comparative negligence, parental negligence can reduce an award
of damages to parents seeking damages in their own right for injury to or death of a child. See, e.g., Jacksonville
Elec. Co., 50 Fla. at 185; Gurney v. Cain, 588 So.2d 244 (Fla. 4th DCA 1991).
APPLICATION OF THE DOCTRINE: Comparative Negligence
Florida adheres to the doctrine of comparative negligence. Under Section 768.81, Florida Statutes,
“the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not
on the basis of the doctrine of joint and several liability.” While Florida courts abide by the common law prin-
ciple that a parent’s negligence cannot be imputed to a child in an action by or on behalf of the child, the Flor-
ida Supreme Court has held that the name of an allegedly negligent parent can be placed on the verdict form
for apportionment of fault where there is sufficient evidence of fault which caused the child’s injuries. See Y.H.
Investments, Inc. v. Godales, 690 So.2d 1273 (Fla. 1997) (Wells, J and Kogan, CJ, dissenting). The Court reasoned
that the defendant cannot be liable for more than his or her percentage of fault under Section 768.81, Florida
Statutes. Id. Thus, in practical application, if the parent was found to be 50 percent negligent and the defendant
50 percent negligent, the child would only be permitted to recover 50 percent of any damages award from the
defendant under the comparative negligent doctrine. Id.
However, it should also be noted that one parent’s negligence cannot be attributed to the other parent
so as to limit the other parent’s award of damages in a wrongful death action. Frazier v. Metropolitan Dade Co.,
701 So.2d 418 (Fla. 3d 1997). With respect to an action for wrongful death, Florida law specifically provides,
“A defense that would bar or reduce a survivor’s recovery if she or he were the plaintiff may be asserted against
him, but shall not affect recovery of any other survivor.” §768.20, Fla. Stat. (2010). The Florida Supreme Court
specifically held that this provision is controlling over Section 768.81, Florida Statutes.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Comparative negligence is an affirmative defense and the burden of poof lies with defendant. See, Fla.
R. Civ. P. 1.110; §768.81, Fla. Stat. (2010); Cuozzo v. Ronan & Kunzl, Inc., 453 So.2d 902 (Fla. 4th DCA 1984).
QUESTION OF LAW OR FACT: Generally a Question of Fact
The issue of whether a party or nonparty is comparatively negligent is usually a question of fact for
the jury to decide; however, where no reasonable view of the evidence by the jury could support a finding of
comparative negligence, the issue can be a question of law. See, e.g., Capitano v. CSX Transp, Inc., 698 So.2d
652, 653 (Fla. 2d DCA 1997). It is well-settled law that “where there is no evidence tending to prove compara-
tive negligence, the issue should not be submitted to the jury.” Florida Ass’n of Workers for the Blind, Inc. v. Guil-
laume, 618 So.2d 275, 276 (Fla.3d DCA 1993)
LEGAL AUTHORITY: Statutory
The key legal authority regarding comparative negligence and the apportionment of fault between
parties and non-parties is Section 768.81, Florida Statutes, which was adopted by the Florida legislature in its
present form in 1993.
The Florida Supreme Court’s most recent, detailed pronouncement of how the negligence of a parent
affects the recovery of a child under the comparative negligence doctrine is found in Y.H. Investments, Inc. v.
Godales, 690 So.2d 1273 (Fla. 1997).
SPECIAL CONSIDERATIONS: Issues of Pleading and Evidence
XI. Georgia
Sean W. Shirley
Adam K. Israel
Balch & Bingham LLP
ACCEPTANCE OF THE DOCTRINE: No, except (1) where parental negligence is “sole proximate
cause” of child’s injury; and (2) in a wrongful death action, comparative fault analysis is applied to reduce the
negligent parent’s recovery.
“If the parents are aware of the danger and are the sole proximate cause of the injury to the infant,
there can be no recovery against the defendant even though the defendant may have been negligent.” Barbara J.
Van Arsdale, Georgia Jurisprudence, §21:52 (2010) (citing Teppenpaw v. Blaylock, 191 S.E.2d 466, 469 (Ga. Ct.
App. 1972)); Stroud v. Willingham, 190 S.E.2d 143, 144-45 (Ga. Ct. App. 1972). Otherwise, in a personal injury
action by or on behalf of a child, the negligence of one or both parents or a custodian selected by one or both
parents is not imputable to the child, but in a wrongful death action the negligence of a parent will preclude
recovery by that parent if his or her negligence is greater than or equal to the negligence of the defendant. How-
ever, it does not necessarily bar the other parent from recovering. Id. (citing Ga. Code Ann. §51-2-1(b) (2000)
(“In an action by an infant, the fault of the parent or of custodians selected by the parents is not imputable to
the child.”)); Fulford v. ITT Rayonier, Inc., 676 F.Supp. 252, 254-55 (S.D. Ga. 1987).
APPLICATION OF THE DOCTRINE: Causation and Comparative Fault
The doctrine’s application is two-fold. First, in a personal injury action brought by or on behalf of a
child, recovery by the child will be barred “where the negligence of the parent is the sole proximate cause of the
injury to the child.” Stroud, 190 S.E.2d at 144. Absent a showing that the negligence of one or both parents is the
sole proximate cause, the negligence of one or both parents or a custodian selected by one or both parents is
not imputable to the child. Ga. Code Ann. §51-2-1(b) (2000). Alternatively, in an action for the wrongful death
of a child by one or both parents under Georgia Code Annotated Section 19-7-1(c), the negligence of a parent
will bar recovery by that parent only if that parent’s negligence is greater than or equal to that of the defendant.
Fulford, 676 F.Supp. at 254-55. However, one parent’s negligence will not bar recovery by the other parent. Id.
XII. Hawaii
Michael C. Osborne
ArcherNorris
ACCEPTANCE OF THE DOCTRINE: No.
The negligence of a parent is not imputable to the child plaintiff. Ellis v. Mutual Telephone Company,
29 Haw. 604, 621-622 (1927). Accord, Carpenter v. Honolulu Rapid Transit Company, Limited, 35 Haw. 761, 762
(1940) (the jury was properly instructed that an negligence of the child plaintiff ’s mother or father cannot be
imputed to the child).
XIII. Idaho
Martin Stern
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes, partially
When a parent files litigation solely on behalf of the minor child the defendant cannot reduce its lia-
bility by claiming contribution from the parent. Pedigo v. Rowley, (1980) 101 Idaho 201, 610 P.2d 560. There is
also no published opinion which overrides this general rule so that the non-party parent is placed on a special
verdict form to receive an apportionment of liability. The inability to obtain contribution from the allegedly
negligent parent is founded upon Idaho’s parental immunity doctrine. In this context, the parental immunity
doctrine eliminates the possibility of inappropriately reducing the child’s compensation by means of appor-
tionment with the negligent parent. Woodburn v. Manco, (2002) 137 Idaho 502, 50 P.3d 997.
Where the child has no cause of action against the parent for negligent supervision a third-party also
has no claim for contribution from the parent. Pedigo v. Rowley, (1980) 101 Idaho 201, 610 P.2d 560. In Pedigo
this inequity was recognized by Justice Bakes within his dissenting opinion. Justice Bakes described the follow-
ing scenario:
The inequity possible under the holding of the majority in this case is immediately evident. If the
third party is minimally negligent—for example, 10 percent—and the immune parent is primar-
ily at fault—for example, 90 percent—the third party will, according to the majority, be saddled
with the entire judgment while the seemingly culpable parent bears no loss whatsoever. If the par-
ent and the child are truly one economic unit, as the majority approvingly asserts by its quotation
from the Holodook case, the parent profits by his own wrongdoing.
Id. at 567
In contrast, when the parent of a minor child brings an individual claim on his or her own behalf,
then the defendant is permitted to counter claim to offset certain damages. When a parent pursues a claim for
individual damages, “the negligence of a parent bars only the parent’s action to recover medical and hospital
expenses, loss of services and the like, but is not imputed to the child in an action by or on behalf of the child
for his personal injury.” Gayhart v. Schwabe, (1958) 80 Idaho 454, 330 P.2d 327; Jacobson v Schroder, (1990) 117
Idaho 442, 788 P.2d 843.
XIV. ILLINOIS
John Monical
Lawrence Kamin Saunders & Uhlenhop LLC
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
In Illinois, when a child is injured by the negligence of another, contributory negligence on the part of
a parent cannot be imputed to the child so as to bar the child’s suit for injuries and damages. Romine v. City of
Watseka, 341 Ill. App. 370, 91 N.E.2d 76 (2d Dist. 1950), citing Chicago City R. Co. v. Wilcox, 138 Ill. 370 at 370-
381, 27 N.E. 899(1891) (when a child is injured, the negligence of his parents cannot be imputed to him so as
to support the defense of contributory negligence); Richardson v. Nelson, 221 Ill. 254 at 254-257, 77 N.E. 583
(1906); Perryman v. Chicago City R. Co., 242 Ill. 269 at 269-274, 89 N.E. 980 (1909); Hallis v. Stover Co., 275 Ill.
App. 44 (1st Dist. 1934) (in an action by a minor to recover for injuries, the negligence or contributory negli-
gence of the minor’s parents or one charged with the minor’s care during the time of the accident is not imput-
able to the plaintiff so as to bar a recovery).
However, a parent’s negligence may still bar or reduce recovery when: (1) the parent’s negligence
reduces the total fault of the defendant below a statutorily defined percentage, 25 percent of the total fault of all
parties contributing to the damages, 735 ILCS 5/2-117; (2) the claim is brought under Illinois’ wrongful death
statute, 740 ILCS §180; or (3) the claim is for family expenses chargeable against the parents under the family
expense provision of the Rights of Married Persons Act, family expense statute, 750 ILCS 65/15.
APPLICATION OF THE DOCTRINE: Statutory Comparative Fault and Contributory Negligence
Illinois has adopted a statutory modified comparative fault in all actions on account of death, bodily
injury or physical damage to property. Under the statute, the plaintiff’s recovery is reduced by the plaintiff’s con-
tributory fault unless the plaintiff is more than 50 percent at fault for causing his own injuries or damages. If the
plaintiff is more than 50 percent at fault, judgment is entered in favor of the defendant. 735 ILCS 5/2-1116. As
noted above, the parent’s negligence generally is not imputed to the child when the child is the plaintiff.
Several Liability (25 percent Rule):
Illinois law provides that in actions arising out of bodily injury, death, or property damage, a
defendant who is found to be less than 25 percent at fault for a plaintiff ’s damages (given the total combined
fault attributable to the plaintiff, defendants sued by the plaintiff, and “any third party defendant except the
plaintiff ’s employer”) shall be only severally liable for damages other than “Medical and medically related
XV. Indiana
Thomas H. Neuckranz
Williams Montgomery & John
ACCEPTANCE OF THE DOCTRINE: Yes with respect to a wrongful death action, and in all actions the
jury will allocate and apportion fault to a parent if the parent is at fault.
A parent’s negligence cannot be imputed onto a child in an action brought by or on behalf of a child.
Witte v. Mundy, 820 N.E.2d 128, 133 (Ind. 2005) (citing City of Evansville v. Senhenn, 47 N.E. 634, 638 (Ind.
1897)). However, the negligence need not be imputed on the child to reduce the plaintiff’s recovery. The jury will
allocate the fault of all parties and nonparties, including parents of the minor plaintiff, even when immunity bars
the plaintiff’s recovery from a party or nonparty. Witte, 820 N.E.2d at 133. Thus, an adult’s negligent supervision,
for example, can be a contributing cause to the child’s injury, relieving a defendant of some or all liability. Id.
In a Child Wrongful Death action, see Ind. Code 34-23-2-1, brought by the parents, the jury will simi-
larly assess the parents’ degree of fault and reduce the parents’ recovery. Evansville and Crawfordsville R.R. Co. v.
Wolf, 59 Ind. 89, 92 (1877); Ind. Code 34-51-2-7.
Under either type of action, a defendant can only be liable for its percentage of fault. See Ind. Code 34-
51-2-7.
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault
Indiana is a modified comparative fault state in which a plaintiff cannot recover if he is more than fifty
percent at fault. Hockema v. J.S., 832 N.E.2d 537, 542 (Ind. 2005); Ind. Code 34-51-2-6. The comparative fault
statute provides:
XVI. Iowa
Kevin M. Reynolds
Whitfield & Eddy, PLC
ACCEPTANCE OF DOCTRINE: Yes, partially.
Under Iowa law, a parent’s negligence cannot be imputed to the child in an action against a third party
to recover for negligent injury to the child. Zach v. Morningstar, 142 N.W.2d 440, 443 (1966); Raskin v. City of
Sioux City, 198 Iowa 865, 200 N.W. 333 (1924)(overruled on other grounds); Fink v. City of Des Moines, 115
Iowa 641, 89 N.W. 28 (1902); and Wymore v. Mahaska County, 43 N.W. 264, 265 (Iowa 1889)(“Where a child is
killed through the negligence of another, his administrator may recover for the wrong, though the parents of
the child may have been guilty of negligence contributing to the injury.”)
However, while the negligence of parents is not imputed to the child, it is relevant to the parents’ recov-
ery. See Wymore v. Mahaska County, 43 N.W. 264, 265 (Iowa 1889)(“If his parents by their negligence, contrib-
uted to [the child’s] death, that does not seem to us to be a sufficient reason for denying his estate relief. Such
negligence would prevent recovery by the parents in their own right.”); Albertson v. Keokuk & D. M. R. Co., 48
Iowa 292 (1878)(a parent’s fault in causing injury to the minor will serve to reduce or bar the parent’s claim).
APPLICATION OF DOCTRINE: Comparative Fault
XVII. Kansas
Thomas E. Rice
Kara T. Stubbs
Baker Sterchi Cowden & Rice, L.L.C.
ACCEPTANCE OF THE DOCTRINE: No–Imputed Negligence; Yes–Negligence of Parent in Wrongful
Death of Child.
Term “imputed negligence” refers to doctrine that places upon one person responsibility for the neg-
ligence of another; such responsibility or liability is imputed by reason of some special relationship of the par-
ties. See Schmidt v. Martin, 510 P.2d 1244 (Kan. 1973). The Court in Schmidt, discussed the doctrine of imputed
negligence, pointing out that in the course of our judicial history Kansas has rejected the application of the
doctrine of imputed negligence in the following special relationships: parent and child; husband and wife;
driver and passenger; owner of vehicle and driver; and bailor and bailee. The doctrine of imputed negligence
is now approved and accepted in Kansas only when applied to two special relationships—the master-servant
relationship and joint enterprise. Lightner v. Frank, 727 P.2d 430, 433 (Kan. 1986) (citing Kan.Stat.Ann §60-
258(a); Schmidt v. Martin, 510 P.2d 1244 (Kan. 1973)). Kansas Courts rejected the doctrine in the parent-child
situation by holding that a child is not responsible for the contributory negligence of his parents. See id. More-
over, when the parents of a child are unable to give him their personal care and intrust him to the supervision
to a suitable person, the negligence of the latter cannot be imputed to the parents, and will not defeat a recovery
for negligence resulting in the death of the infant. See id.
However, in Kansas, where the death of a minor child results from the contributory negligence of a
parent and that of a third person the issue has yet to be decided by the courts. Prior to the enactment of K.S.A.
60-258a it was well recognized, under contributory negligence theory, that in an action for the wrongful death
of a child the contributory negligence of a parent would bar their recovery from a third party because the dam-
ages recoverable for the death of the child are solely for the benefit of the parent who negligently contributed to
the child’s death. See Schmidt v. Martin, 510 P.2d 1244 (Kan. 1973). Kansas Courts have yet to apply K.S.A 60-
258a and the comparative fault of a parent to a minor child’s wrongful death action. However, it is very likely
that Kansas Courts will apply comparative fault of a parent in reducing any recovery in proportion to his or her
percentage of fault. See Honeycutt By and Through Phillips v. City of Wichita, 796 P.2d 549 (Kan. 1990) (holding
that if contributory negligence or an analogous defense would have been a defense to a claim before compara-
tive fault was adopted, then the comparative negligence statute is applicable to the same facts).
APPLICATION OF THE DOCTRINE: Comparative Fault
The doctrine is applied through the principle of comparative negligence. The state of Kansas adheres
to the doctrine of modified comparative negligence. E.g., Kan.Stat.Ann. §60-258(a) (2010); Forsythe v. Coats
Co., Inc., 639 P.2d 43 (Kan. 1982). According to K.S.A. §60-258(a) “[t]he contributory negligence of any party
in a civil action shall not bar such party or such pary’s legal representative from recovering damages for negli-
gence resulting in death, personal injury, property damage or economic loss, if such party’s negligence was less
than the causal negligence of the party or parties against whom claim for recovery is made, but the award of
damages to any party in such action shall be diminished in proportion to the amount of negligence attributed
to such party. Kan.Stat.Ann. §60-258(a) (2010).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
The Parental Negligence Doctrine v Shirley v 413
A Defendant who seeks to reduce his percentage of fault by comparing fault of another party has bur-
den of proving other party’s fault by preponderance of evidence. See Wooderson v. Ortho Pharmaceutical Corp.,
681 P.2d 1038 (Kan. 1984); see also Kan.Stat.Ann. §60-258a(c) (2010). Meaning that if the Defendant argues
either the Plaintiff or a third party contributed to the Plaintiff ’s injuries the Defendant must offer proof more
probable than not that such a claim is true. See McGraw v. Sanders Co. Plumbing and Heating, 667 P.2d 289 (Kan.
1983). This is in line with the general rule that the burden of proof on any point is upon the party asserting it.
See id.
QUESTION OF LAW OR FACT: Question of Fact
According to the Kansas Supreme Court, the negligence or comparative fault of a particular person in
particular circumstances is a question of fact to be determined by the finder of fact in each case. See Honeyc-
utt by and Through Phillips v. City of Wichita, 796 P.2d 549 (Kan. 1990). Under law of comparative negligence,
allocation of each party’s proportionate negligence must be question for trier of fact. See Scales v. St. Louis-San
Francisco Ry. Co., 582 P.2d 300 (Kan. 1978).
LEGAL AUTHORITY: Statutory and Common law
In 1974, the Kansas legislature enacted what is now K.S.A. 60-258a which in pertinent part provides:
(a) The contributory negligence of any party in a civil action shall not bar such party or said party’s
legal representative from recovering damages for negligence resulting in death, personal injury
or property damage, if such party’s negligence was less than the causal negligence of the party
or parties against whom the claim for recovery is made, but the award of damages to any party
in such action shall be diminished in proportion to the amount of negligence attributed to such
party.
Kan.Stat.Ann. §60-258(a) (2010)
The Kansas Supreme Court held in Teepak Inc. v. Learned, that according to State case law, that the
Intent and purpose of legislature in adopting comparative negligence statute was to impose individual liabil-
ity for damages based on proportionate fault of all parties to the occurrence which gave rise to the injuries and
damages even though one or more parties cannot be joined formally as litigant or be held legally responsible
for his or her proportionate fault. 699 P.2d 35 (Kan. 1985). Kansas Comparative Negligence Act applies wher-
ever a defendant could set up a defense of contributory negligence or an analogous defense, and, thus, plain-
tiff ’s fault must be compared with that of defendant whether it be characterized as contributory negligence,
assumption of risk, product misuse or unreasonable use. See Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449
(10th Cir.1982).
SPECIAL CONSIDERATIONS: Pleading Issues
The Kansas Rules of Civil Practice mandate that “[i]n a pleading to a preceding pleading a party shall
set forth affirmatively . . . contributory negligence . . . and any other matter constituting an avoidance or affir-
mative defense.” Kan. Civ. Prc. Code Ann. §60-208(c) (2010). Thus, all affirmative defenses should be pled in
the defendant’s answer to the complaint.
However, the Rules do allow amendment of the pleadings, stating “[w]hen issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they
had been raised in the pleadings.” Kan. Civ. Prc. Code Ann. §60-214(b) (2010). Even upon objection of the
amendment on a non-pled issue, “the court may allow the pleadings to be amended and shall do so freely when
the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the
court that the admission of such evidence would prejudice the . . . defense upon such merits.” Id.
JURY INSTRUCTION: Apportionment of Fault and Comparative Negligence
414 v Product Liability Conference v April 2011
The Pattern Instructions for the state of Kansas contains several instructions regarding comparative
fault. The following are the instructions to be suggested for a comparative fault case: Comparative Fault The-
ory and Effect, PIK–Civil 4th 105.01; Comparative Fault Theory and Effect—Children, PIK–Civil 4th 105.02;
Comparative Fault—Explanation of Verdict, PIK–Civil 4th 105.03; Comparative Fault—Where Claim is Made
Against One Not Joined As A Party, PIK–Civil 4th 105.04; Comparative Fault—Basis of Comparison, PIK–Civil
4th 105.05; Comparative Fault—Fault Directed By Court—Admitted or Stipulated Issue, PIK–Civil 4th 105.06;
Assumption of Risk, PIK–Civil 4th 107.52; Bailment—Unreasonable Use as a Defense to Implied Warranty of
Fitness, PIK–Civil 4th 124.78, Animals—Vicious, PIK–Civil 4th 126.91; Express or Implied Warranty—Unrea-
sonable Use as a Defense—Comparative Fault, PIK–Civil 4th 128.16; Products Liability—Strict Liability in
Tort—Unreasonable Use as a Defense—Comparative Fault, PIK–Civil 4th 128.19; Verdict Form—Comparative
Fault, PIK–Civil 4th 181.04.
XVIII. Kentucky
Elizabeth A. Deener
Landrum & Shouse LLP
ACCEPTANCE OF THE DOCTRINE: Yes, but mostly abrogated.
Kentucky has recognized the doctrine that an unemancipated minor cannot maintain an action
against a living parent to recover damages for negligence. Harralson v. Thomas, Ky., 269 S.W.2d 276 (1954); Red-
wine v. Adkins, Ky., 339 S.W.2d 635 (1960); Harlan National Bank v. Gross, Ky., 346 S.W.2d 482 (1961). In Rigdon
v. Rigdon, Ky., 465 S.W.2d 921 (1971), the Kentucky Supreme Court abandoned the doctrine of parental immu-
nity except in two situations: (1) where the negligent act relied on for recovery involves the “reasonable exercise
of parental authority” over the child, and (2) where the alleged negligent act involves the exercise of ordinary
parental discretion with respect to provisions for the care and necessities of the child.
THE LIMITED APPLICATION
As recognized by Rigdon, the parental immunity doctrine prevents an action against a parent except
when the parent is exercising authority over the child and parental discretion. These applications have been
narrowly defined by the Kentucky Supreme Court. Specifically: (1) An exercise of parental authority “simply
involves acts of disciplining a child.” Horn v. Horn, 630 S.W.2d 70 (Ky. 1982) (citing Thoreson v. Milwaukee and
Suburban Transport Co., 56 Wis.2d 231, 201 N.W.2d 745, 753 (1972)); (2) The exercise of ordinary parental
discretion “in providing for the care and necessities of a child is limited to those provisions which a parent is
legally obligated to furnish.” Id.
THE DEATH OF THE PARENT
The doctrine does not apply in cases where the injuries to the minor child were the result of negli-
gence by the parent and also resulted in the parent’s death. Thurman v. Etherton, 459 S.W.2d 402 (Ky. 1970).
In Thurman, held that doctrine of parental immunity did not bar unemancipated minors’ action against their
father’s estate to recover damages for personal injuries sustained in an automobile accident also resulting in
death of the father. The Court determined that the change in family status caused by the parent’s death means
the public policy considerations supporting the doctrine of parental immunity are no longer controlling. As the
“reasons which may have justified barring the child’s remedy against a living parent have lost their compelling
significance when the living-family relationship no longer exists.” Id.
SPECIAL CONSIDERATIONS: Insurance; Motor Vehicle Reparations Act
XIX. Louisiana
Damian Fletcher
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes
Louisiana adopted a comparative system by statute in 1996. Pursuant to Louisiana Civil Code arti-
cle 2323(a), “in any action for damages where a person suffers injury, death, or loss, the degree or percentage
of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of
whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to
pay or immunity by statute. If a person suffers injury, death, or loss as the result partly of his own negligence
and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be
reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury,
death, or loss.” LSA C.C. Art. 2323 (2010).
Under provision B of article 2324 as amended in 1996, “If liability is not solidary pursuant to Para-
graph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A
joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any
other person for damages attributable to the fault of such other person, including the person suffering injury,
death, or loss, …” LSA C.C. Art. 2324 (b) (2010). In other words, there is no joint and several liability among
joint tort feasors.
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault
Comparative fault is an affirmative defense. Trahan v. Savage Industries, Inc., 692 S.2d 490 (La. Ct.
App. 3d Cir. 1997). Since the adoption of Louisiana’s pure comparative fault system, theories of assumption of
risk and third party actions have been subsumed into the comparative fault system making a counter-claim or
third-party claim unnecessary. The threshold requirement for application of the doctrine of comparative fault
to reduce a damage award is that the plaintiff, third party, or irresistible force must be found partially at fault in
causing resulting harm. Landry v. State, 495 So. 2d 1284 (La.1986); Trahan v. Savage Industries, Inc., 692 So. 2d
490, 1996-1239 (La. App. 3 Cir. 1997).
There is little, if any, law on the specific issue of a parent’s negligence leading to injury or death of a
child since Louisiana’s adoption of the pure comparative fault system. Under Louisiana law prior to the 1996
amendment of LSA C.C. Art. 2323 and 2324, when a minor was injured, damages for the injury belonged to the
minor child. Coleman v. Audobon Insurance Co., 572 S.2d 352 (La. App. 1st Cir. 1990); Aucoin v. Louisiana Dept.
of Transp. and Dev., 712 S.2d 62 (La. 1998). When a parent brought suit as a tutrix or guardian to recover med-
ical expenses that belonged to a child, the parent’s recovery was not personal and could not be reduced by the
parent’s percentage of fault. Id. (applying the contributory fault principles to a 1990 accident).
With the 1996 revision of Civil Code article 2324 and the introduction of pure comparative fault, fault
which is allocated to a parent for breach of a duty to supervise a child thereby reduces the award to the child. “A
joint tortfeasor shall not be liable for more than his degree of fault .…” LSA C.C. Art. 2324 (b).
416 v Product Liability Conference v April 2011
The applicability of comparative fault in product liability cases is to be made on a case-by-case basis.
Bell v. Jet Wheel Blast, Div. of Ervin Industries, 462 So. 2d 166 (La. 1985).
Where the threat of a reduction in recovery will provide consumers with an incentive to use a
product carefully, without exacting an inordinate sacrifice of other interest, comparative prin-
ciples should be applied for the sake of accident prevention. The recovery of a plaintiff who has
been injured by a defective product should not be reduced, however, in those types of cases in
which it does not serve realistically to promote careful product use or where it drastically reduces
the manufacturer’s incentive to make a safer product.
Id. at 171-172; see also Scott v. American Tobacco Co., Inc., 830 So. 2d 294, 296 (La. 2002).
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
The party asserting the defense of comparative fault bears the burden of proving by a preponder-
ance of the evidence that the negligence of the other party was the cause in fact of the accident. Trahan v. Sav-
age Industries, Inc., 692 S.2d 490. Under the comparative fault statute, the Court inquires to determine the fault
of all persons causing or contributing to injury, death or loss, regardless of whether the person is a party to the
action or a non-party. State Dept. of Transp. and Dev. v. Cecil, 966 S.2d 131 (La. App. 2d Cir. 2007).
QUESTION OF LAW OR FACT: Question of law
The determination of whether comparative fault is applicable to a particular case has always been
made by the Trial or Appellate Court. Landry v. State, 495 So. 2d 1284 (La. 1986). It is, therefore, a legal question
to be decided by the court. Falgoust v. Richardson Industries, Inc., 552 So. 2d 1348 (La. App. 5th Cir. 1989), writ
denied, 558 So. 2d 1126 (La. 1990). The finding of percentages of fault or shares of negligence pursuant to the
comparative fault statute is a factual determination. Rideau v. State Farm Mut. Auto. Ins. Co., 970 So. 2d 564 (La.
App. 1st Cir. 2007), rehearing denied, writ denied, 972 So. 2d 1168 (La. 2008).
LEGAL AUTHORITY: Statutory
Louisiana Civil Code articles 2323 and 2324, supra.
SPECIAL CONSIDERATIONS: Pleading Issues
The defendant in a principle action may bring in any person, including a co-defendant who is or may
be liable to him for all or part of the principal demand. LSA-C.C.P. Art. 1111. Article 1005 requires the answer
to set forth affirmatively negligence, or the fault of the plaintiff and others. LSA-C.C.P. Art. 1005. As a result of
Louisiana’s adoption of comparative fault, assumption of the risk is no longer a distinct legal concept, which
acts as a complete bar to the plaintiff ’s recovery. Instead, the plaintiff ’s disregard of risk is among the factors to
be considered in assessing percentages of negligence and fault. See LSA C.C. Art. 2323 and Murray v. Ramada
Inn, Inc., 521 So. 2d 1123 (La. 1988).
JURY INSTRUCTION: Contributory Negligence; Comparative Fault; Proximate Cause; Imputed Negli-
gence
Each state court judge generally has their own set of instructions and then the parties submit and
argue over “special” charges specific to the facts of their case. It is presently settled that the trier of fact is to
allocate fault equaling 100 percent to all “involved” persons, i.e., to all persons for whom there is a sufficient evi-
dentiary basis to conclude that they have “caused” or “contributed” to the injury, death or loss. See comments to
18 La. Civ. L. Treatise, Civil Jury Instructions §15.01 (2d ed.) If the trial judge is persuaded that there is no evi-
dence that a non-party or third person might be at fault, then it is not error to refuse to give an instruction as to
the fault of such a person. See id. (citing Vascocu v. Acme Cement Products, Inc., 610 So .2d 258 (La. App. 3d Cir.
1992)).
XX. Maine
Timothy Malin
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Partially.
Under Main law, the negligence of a parent in failing to supervise his child cannot be imputed to the
child in a personal injury action. Maine has rejected the contention that the parent and child are a single entity
for comparative fault purposes. In the personal injury setting, Maine holds that the negligence of a parent is
properly placed before the jury by way of a counterclaim against the parent for contribution. LaBier v. Pelletier,
665 A.2d 1013 (Me. 1995).
With regard to wrongful death, a parent’s negligence may not be imputed a deceased child, but the
parent’s contributory fault shall be considered as the parent is a beneficiary under Maine’s wrongful death
statute, 14 M.R.S.A. §156. Where the parent, claiming as beneficiary, is at least as culpable as the Defendant,
Maine’s comparative negligence statute bars recovery. AMICA Mutual Insurance Company v. Estate of Pecci, 953
A.2d 369 (Me. 2008); 18 M.R.S.A. §2-804; 14 M.R.S.A. §156.
The negligence of one parent is not imputable to the other parent. Illingworth v. Madden, 192 A.273
(Me. 1937).
APPLICATION OF THE DOCTRINE: Comparative Negligence
According to 14 M.R.S.A. §156, when a person suffers death or damage as a result of that party’s own
fault and partly of the fault of any other person or persons, a claim in respect of that death or damage may not
be defeated by reason of the fault of the person suffering the damage, but the damage recoverable in respect
thereof must be reduced to such extent as the jury thinks just and equitable having regard to the claimant’s
share in the responsibility for the damage. Section 156 goes on to state, however, that if such claimant is found
by the jury to be equally at fault, the claimant may not recover. 14 M.R.S.A. §156. Maine has rejected the con-
tention that the parent and child are a single entity for comparative negligence purposes. As such, parental
negligence may not be imputed to the child. Parental negligence is properly brought before the jury by way of
counterclaim for contribution. LaBier v. Pelletier, 665 A.2d 1013 (Me. 1995). Where the parent is a beneficiary
under the wrongful death statute, 18 M.R.S.A. §2-804, the parent’s negligence will reduce his recovery pur-
XXI. Maryland
Sidney Leech
Goodell, DeVries, Leech & Dann, LLP
ACCEPTANCE OF THE DOCTRINE: No, unless “extraordinary circumstances” exist. To date, no court
in Maryland has applied this exception.
Under Maryland law, the negligence of a parent or custodian may not be imputed to the infant. Md.
Code Ann., Cts & Jud. Proc. §10-910. Maryland courts have repeatedly applied the statute to both wrongful
death and negligence claims. E.g, Matthews v. Amberwood Associates Ltd P’ship, Inc., 719 A.2d 119 (Md. 1998)
(wrongful death); Palms v. Shell Oil Co., 332 A.2d 300 (Md. 1975) (negligence). In light of this statute, therefore,
a parent’s negligence will only constitute an “independent and superseding cause of the child’s injuries” in an
“extraordinary situation.” Caroline v. Reicher, 304 A.2d 831 (Md. 1973). Simply put, the child’s recovery is barred
only if the parent’s negligence was the principal action that brought about the injury. Id. at 129-30.
No Maryland case to date has applied the exception, however, thereby indicating that the circum-
stances must be quite “extraordinary.” See Matthews, 719 A.2d at 579-80 (finding that a mother allowing infant
XXII. Massachusetts
Andy Levin
David Barry
Sugarman, Rogers, Barshak & Cohen, P.C.
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Massachusetts law, a parent’s negligence cannot be imputed to a child so as to preclude an
action by the child for injury to the child’s person or property. M.G.L. c. 231§85D (“In all actions to recover
damages for injury to the person or property of an infant, the negligence of the parent or other custodian of the
infant shall not be imputed to the infant from the fact of such parenthood or custodianship.”). The statute does
not apply, however, to an action to recover damages for the death of an infant. St. 1945, c. 352, §§3, 4.
Note that in an action for wrongful death premised on a breach of warranty theory (the functional
equivalent of strict liability in Massachusetts) as opposed to negligence, the imputation of the parent’s negli-
gence to the child will, have no effect because in such instances the focus of the inquiry is upon the character of
the product and comparative negligence is inapplicable. Correia v. Firestone Tire & Rubber, Co., 388 Mass. 342
(1983) (Holding that comparative negligence is not a full or partial defense to a wrongful death action based on
a breach of warranty theory).
APPLICATION OF THE DOCTRINE: Comparative Negligence
As stated above, the parent’s negligence is irrelevant in an action for an injury to the child. Under the
Massachusetts wrongful death statute, however, in an action predicated on the defendant’s negligence, the com-
parative negligence statute will serve to reduce, or bar if greater than 50 percent, the recovery for a decedent’s
heirs when the decedent’s negligence contributed to the decedent’s death. M.G.L. c. 231, §85. Because no case
applying the imputation of a parent’s negligence to a recovery for the child’s death has been decided since the
current wrongful death statute and the comparative negligence statute were both in effect, the question of what
impact, if any, the imputation of a parent’s negligence to the child decedent may have on that parent’s recovery,
and the recovery of any other “takers” under the wrongful death statute, is undecided.
In Santos v. Chrysler, the Supreme Judicial Court held that, contrary to prior law which held that a
party who negligently contributed to a death could not recover for that death, a parent whose negligence con-
tributed to a child’s death would be able to recover under the wrongful death statute. Santos v. Chrysler, 430
Mass. 198, 215 (1999). In so holding, the SJC reasoned that a beneficiary under the wrongful death statute (e.g.,
the parent in the case of a child’s death) was akin to a plaintiff under the comparative negligence statute (even
though not nominally a plaintiff) whose negligence should be compared to the negligence of all defendants.
XXIII. Michigan
Norma Gant
Clark Hill PLC
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Michigan law, the imputation of a parent’s negligence to the child depends on whether the suit
is being brought on behalf of the child or the parent. Evidence of a parent’s comparative negligence is inadmis-
sible in a suit brought on the child’s behalf, even if the parent is the ultimate beneficiary of the recovery. Byrne v.
Schneider’s Iron & Metal, Inc., 475 N.W.2d 854, 860 (Mich. Ct. App. 1991). A parent’s negligence is relevant, how-
ever, where the parent is seeking recovery on his or her own behalf. Id.
XXIV. Minnesota
John Monical
Paul Weltlich
Lawrence Kamin Saunders & Uhlenhop LLC
ACCEPTANCE OF THE DOCTRINE: Yes, partially. Parental negligence will bar recovery for the
wrongful death of a child. However, negligence of the parents will not be imputed to a child to bar recovery
when a child is injured.
In Minnesota, the negligence of a parent is not imputed to the parent’s child and will not bar a child
from recovering for injuries sustained through the negligence of a third party. See Peterson v. Richfield Plaza,
XXV. Mississippi
Sean W. Shirley
Thomas R. DeBray, Jr.
Balch & Bingham LLP
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
A parent who is negligent in causing the death of a child is subject to a reduction of any damages
award levied against the defendant for wrongful death in proportion to the parent’s level of fault. Hammond v.
Shalala, 2000 WL 640837, at *7 (N.D. Miss. 2000) (citing Miss. Code Ann. §85-5-7; Hunter v. Gen. Motors Corp.,
729 So. 2d 1264 (Miss. 1999)) (emphasis added).
However, because parent-child immunity bars a child’s suit against their parents in tort, other wrong-
ful death statutory beneficiaries whom are unemancipated minors are not subject to having their recoveries
reduced in proportion to their parent’s level of fault. Hammond, 2000 WL 640837, at *7. Also, a parent’s negli-
gence may not be imputed to a child in an action by the child or for the child’s benefit against a defendant whose
fault was a contributing cause of the child’s death or injury. E.g., Bunch v. Shaw, 355 So. 2d 1383, 1385-86 (Miss.
1978) (emphasis added). Further, the negligence of one parent may not be imputed to the non-negligent parent
so as to reduce the claim of the non-negligent parent arising out of the child’s injury. See Wright v. Standard Oil
Co., Inc., 470 F.2d 1280, 1287 (5th Cir. 1972) (in an action by the parents to recover damages for medical costs
and loss of the child’s services resulting from injury to the child, the father’s damages were reduced pro rata by
his proportionate share of fault, but the reduction was not applied to the non-negligent mother’s damages).
Finally, if the plaintiff ’s negligence is the sole proximate cause of the plaintiff ’s injury, then such negli-
gence bars recovery. See, e.g., Hammond, 2000 WL 640837, at *1; see also Phillip McIntosh, Encyclopedia of Mis-
sissippi Law §16:3 (Sept. 2010), available at Westlaw MSPRAC-ENC §16:3.
APPLICATION OF THE DOCTRINE: Comparative Fault/Apportionment of Fault
XXVI. Missouri
Thomas E. Rick
Kara T. Stubbs
Baker Sterchi Cowden & Rice, L.L.C.
ACCEPTANCE OF DOCTRINE: Yes, partially.
Under Missouri law, the negligence of a parent is not imputable to a child in an action brought on a
child’s behalf. Graeff v. Baptist Temple of Springfield, 576 S.W.2d 291, 309 (Mo.1978); Rogers v. Toro Manufactur-
ing Company, 522 S.W.2d 632, 638 (Mo.App.1975). However, since Missouri abolished the doctrine of paren-
tal immunity and replaced it with the reasonable parent standard, an injured child or a third party plaintiff
can recover only if the parent fails to meet the standard of care required of parents. Hartman v. Hartman, 821
S.W.2d 852, 856-858 (Mo.1991)(emphasis added).
In a wrongful death action, a beneficiary who is or may be partially at fault for the decedent’s death
may bring a cause of action against others who may also be partially responsible for decedent’s death. State ex
rel. Griffin v. Belt, 941 S.W.2d 570, 573 (Mo.App.1997). However, if a parent brings an action in his own name
for the wrongful death of his child, “the negligence of the parent that contributes to the casualty which pro-
duced the death can be assessed against the parent.” Clark v. Sears, Roebuck & Co., 731 S.W.2d 469, 473 (Mo.
App.1987).
APPLICATION OF DOCTRINE: Comparative Fault / Contribution
Under Missouri law, the doctrine is applied through the principle of comparative negligence. The Mis-
souri Supreme Court abolished contributory negligence as a complete bar to a plaintiff ’s recovery in negligence
cases and adopted a comprehensive system of “pure” comparative fault. Gustafson v. Benda, 661 S.W.2d 11, 16
(Mo. 1983). Under the Missouri pure comparative negligence principles, “the injured party’s own negligence
is compared to that of the negligence of the defendant to determine whether any damages awarded should
be diminished in proportion to the amount of negligence attributable to that plaintiff.” Rill v. Trautman, 950
F.Supp. 268, 272 (E.D.Mo.1996). However, since parental immunity has also been abolished in Missouri, third
parties may bring claims for contribution against parents for negligent acts towards their children. Peterson v.
Summit Fitness, Inc., 920 S.W.2d 928, 935 (Mo.App.1996); Church v. Moon Freight Lines, Inc., 791 F.Supp. 792
(E.D. Mo. 1992).
Missouri statutory law provides plaintiffs with a cause of action for the wrongful death of a minor.
Mo.R.S. §537.080. In a wrongful death action, the comparative fault of the decedent may be assessed against
the beneficiaries. Teeter v. Missouri Highway and Transp. Com’n., 891 S.W.2d 817, 819 (Mo.1995). If a parent
brings a wrongful death action in her own name, the negligence of that parent that contributes to the cause
of death can be assessed against that parent. Clark v. Sears, Roebuck & Co.. 731 S.W.2d at 473. However, in a
wrongful death action involving multiple beneficiaries, if one of the plaintiffs is also a joint tort-feasor, the law
of contribution will be applied among joint tort-feasors and not the law of comparative fault; if comparative
The Parental Negligence Doctrine v Shirley v 429
fault were also applied to limit the defendant’s liability, the defendant would twice obtain the benefit of plain-
tiff ’s fault. Teeter v. Missouri Highway and Transp. Com’n., 891 S.W.2d at 820.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Comparative fault is an affirmative defense that must be pleaded before evidence and instructions
can be submitted on the case. Lester v. Sayles, 850 S.W.2d 858, 867 (Mo. 1993). Missouri Rule of Civil Procedure
55.08 provides in pertinent part that “(i)n pleading to a preceding pleading, a party shall set forth all applicable
affirmative defenses…, including but not limited to … contributory negligence, comparative fault … and any
other matter constituting an … affirmative defense.” Missouri courts have held that Rule 55.08 applies to the
assertion of comparative fault. State ex rel. Taylor v. Luten, 710 S.W.2d 906, 907 (Mo.App. 1986).
To prove comparative fault, the defendant must prove that the plaintiff ’s conduct contributed to his or
her injury such that defendant’s legal responsibility is either negated or reduced. Rill v. Trautman, 950 F.Supp.
at 272; Business Men’s Assurance Co. V. Graham, 891 S.W.2d 438, 447 (Mo.App.1994). The defendant is entitled
to an instruction of comparative fault if the defendant has met its burden of proof. Rill v. Trautman, 950 F.Supp.
at 272; Rodriguez v. Suzuki, 936 S.W.2d 104, 109 (Mo.1996); Hughes v. Palermo, 911 S.W.2d 673, 674 (Mo.
App.1995).
The defendant also bears the burden of proof with respect to comparative fault in a wrongful death
action. Mo.R.S. §537.085 states that “the defendant may plead and prove as a defense any defense which the
defendant would have had against the deceased in an action based on the same (facts), and which action for
damages the deceased would have been entitled to bring had death not ensued.”
QUESTION OF LAW OR FACT: Generally a Question of Fact
Parties in a negligence action have the right to have their case submitted to a jury under comparative
fault principles if there is evidence from which a jury could find that plaintiff ’s acts or omissions contributed to
the damages. Rill v. Trautman, 950 F.Supp. at 272; Hughes v. Palermo, 911 S.W.2d at 674.
LEGAL AUTHORITY: See above for case and statutory citations.
SPECIAL CONSIDERATIONS: Issues of Pleading
Pursuant to Rule 55.08, when a party asserts an affirmative defense, his or her pleading “shall contain
a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.” Busi-
ness Men’s Assurance Co. V. Graham, 891 S.W.2d at 448. The facts supporting such a defense “… must be pled in
the same manner as they would be with all claims.” Id.; (citing Ashland Oil, Inc. V. Warmann, 869 S.W.2d 910,
912 (Mo.App.1994)).
JURY INSTRUCTIONS:
Missouri “has approved instructions and verdict forms for use in comparative fault cases which do not
refer to or require a finding in favor of or against any party. MAI 37.01-37.07 (1986 new.)” Earll v. Consolidated
Aluminum Corp., 714 S.W.2d 932, 936 (Mo.App. 1986). Note that Missouri courts have held that, unless the par-
ties agree otherwise, when there is evidence from which a jury could find that a plaintiff ’s acts contribute to his
or her damages, the case should be submitted to the jury under the comparative fault instructions “regardless
of whether the defendant submits an affirmative defense instruction or not.” Id. at 937.
Missouri Approved Jury Instructions regarding comparative fault are available for review. MAI 37.01
et seq. (1986). MAI 37.01, Comparative Fault – Verdict Directing Modification; MAI 37.02 Comparative Fault
– Required Change of Former Contributory Negligence Instructions to Submit Plaintiff ’s Comparative Fault;
MAI 37.03 Comparative Fault – Damages; MAI 37.04 Comparative Fault – Converse Instructions – Plaintiff or
Defendant; MAI 37.07 Comparative Fault – Form of Verdict – Plaintiff vs. Defendant; MAI 37.08 Comparative
XXVII. Montana
Neil Covone
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes. Under Montana law, a parent is not immune from actions
in tort brought against him/her by his/her children under the age of emancipation in cases involving paren-
tal negligence in operation of a motor vehicle. Transamerica Insurance Co. v. Royle, 202 Mont. 173, 656 P.2d
820 (1983) (“we see no reason why children should not enjoy the same right or protection and the same legal
redress for wrongs done them as others enjoy”).
APPLICATION OF THE DOCTRINE: Comparative Negligence. Comparative Negligence. MCA §27-1-
702. Joint and Several Liability. MCA §27-1-703. Recovery is barred if the Plaintiff ’s negligence exceeds 50 per-
cent. Comparative negligence scheme requires the fact finder to consider the negligence of the claimant, injured
person, defendants, and third-party defendants, even if a party proceeds under a claim of negligence per se or
if the fact finder determines that one or more persons was negligent per se. MCA §27-1-702; MCA §27-1-703;
Giambra v. Kelsey, 162 P.3d 134 (2007).
BURDEN OF PROOF: Comparative negligence is an affirmative defense. MCA §27-1-719. Also, MCA
§61-9-422, entitled “Evidence admissible without presumption of negligence”, states: “Evidence of compli-
ance or failure to comply with 61-9-420 [entitled “Child safety restraint systems—standards—exemptions”] is
admissible in any civil action for personal injury or property damage resulting from the use or operation of a
motor vehicle, but failure to comply with 61-9-420 does not alone constitute negligence”.
QUESTION OF LAW OR FACT: Question of fact. In products liability case which arose out of incident
wherein grain truck driver’s left arm was amputated below the elbow when his arm slipped into the intake end
of a grain auger manufactured by defendant, evidence presented a jury question whether the grain truck driver
had duty to hang on to the tailgate and was, therefore, contributorily negligent in not doing so. Stenberg v. Bea-
trice Foods Company, 576 P.2d 725 (1978).
LEGAL AUTHORITY: See above for case and statutory citations.
SPECIAL CONSIDERATIONS: MCA §27-1-512, entitled “Action by parent or guardian for injury to
child or ward”, states that “[e]ither parent may maintain an action for the injury to a minor child and a guard-
ian for injury to a ward when the injury is caused by the wrongful act or neglect of another.” In Montana, a
child under seven cannot be contributorily negligent. Johnson v. YMCA, 651 P.2d 1245 (1982). Additionally,
under Montana law statutory comparative negligence has no place in a strict liability action. MCA §27-1-702;
Zahrte v. Sturm, Ruger & Co., 1980, 498 F.Supp. 389, vacated 709 F.2d 26, cert denied 104 S.Ct. 395; see also
MCA §27-1-719 (“…contributory negligence is not a defense to the liability of a seller, based on strict liability
in tort, for personal injury or property damage caused by a defectively manufactured or defectively designed
product”).
JURY INSTRUCTIONS: See Montana Pattern Instructions, Second (MPI2d), Numbers 2.05 (Contribu-
tory Negligence), 2.06 (Contributory Negligence—Multiple Defendants) and 7.0 et seq. (Products Liability).
Note: Westlaw does not carry Montana Jury Instructions on-line.
XXIX. Nevada
Charles L. Clay, Jr.
Kristen Henrichs
Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC
Acceptance of the doctrine: No.
Nevada has refused to adopt the doctrine of parental immunity. Under this doctrine, actions by par-
ents against their unemancipated children are barred as well as actions by unemancipated children against
their parents. See Rupert v. Stienne, 90 Nev. 397, 405 n.4, 528 P.2d 1013, 1018 n.4 (1974). Because the doctrine
has not been adopted in Nevada, the right of a child to sue a parent in tort is without restriction or limitation.
See id. at 405, 528 P.2d at 1018.
“[T]he negligence of a parent cannot be imputed to an innocent child, and the proper remedy is for
all tortfeasors to be held jointly and severally liable.” Hogle v. Hall By and Through Evans, 112 Nev. 599, 606, 916
P.2d 814, 819 (1996); see also Buck by Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).
APPLICATION OF THE DOCTRINE: Comparative Negligence
The Nevada Comparative Negligence Statute applies to actions seeking damages for death or injury to
persons or for injury to property. NRS §41.141. Contributing fault on the part of the plaintiff, though it could
XXXVI. Ohio
Beth Schneider Naylor
Frost Brown Todd LLC
ACCEPTANCE OF THE DOCTRINE: Yes, but not specifically decided since adoption of comparative
fault.
Under existing Ohio precedent, a parent’s contributory negligence will prevent the parent from recov-
ering for a child’s injury. Cleveland, C.C. & St. L. Ry. Co. v. Grambo, 134 N.E. 648, 650 (Ohio 1921). The neg-
ligence of a parent, however, is not imputed to the child and will not bar other non-negligent beneficiaries
from recovering. Id.; 70 Ohio Jur. 3d Negligence §100 (2010). The adoption of a comparative fault system in
Ohio suggests that parental negligence would not act as a complete bar to recovery, however, no Ohio case
has addressed the issue. 30 Ohio Jur. 3d Death §85 (2010). Contributory negligence remains the appropriate
standard, at least nominally, in actions by parents as reflected in Ohio’s pattern jury instructions. 1 O.J.I. CV
§407.15 (2010).
In light of the uncertainty surrounding the parental negligence doctrine in Ohio, the following sec-
tions examine the doctrine as if contributory negligence applies through precedent.
APPLICATION OF THE DOCTRINE: Contributory Negligence
The doctrine operates on the basis of contributory negligence. Parents are required to exercise a
degree of care and control over a child that an ordinarily careful and reasonable parent would exercise over a
child of the same age, education and experience under the same or similar circumstances. Id. A parent’s negli-
gence that “proximately contributes to cause the injuries to a child” will bar that parent’s ability to recover. Id.
Just as one parent’s negligence will not be imputed to a child, the non-negligent parent or beneficiary may also
recover against the tortfeasor. Id.
The doctrine does not apply in actions brought by parents as natural guardians on behalf of the child. Id.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
Contributory negligence is an affirmative defense for which the defendant bears the burden of proof.
Dixon v. Miami Univ, 2005 WL 3316963 at *10 (Ohio App. 10th 2005), citing Valencic v. The Akron & Barberton
Belt Rd. Co. 13 N.E.2d 240 (Ohio 1938). Ohio courts have defined contributory negligence as “any want of ordi-
XXXVII. Oklahoma
Chalmer “Chuck” Detling
Wagner, Johnston & Rosenthal, P.C.
ACCEPTANCE OF THE DOCTRINE: Generally No.
XXXVIII. Oregon
Michael C. Osborne
ArcherNorris
ACCEPTANCE OF THE DOCTRINE: No.
The negligence of a parent or guardian, in exposing a child to danger, will not be imputed to the child
so as to preclude the child’s right of action against a third person. Webb v. Hoover-Guernsey Dairy Co., 138 Ore.
24, 26, 4 P.2d 631, 631 (1931).
APPLICATION OF THE DOCTRINE:
Oregon’s comparative fault statute, ORS 31.600, applies to both strict liability and negligence claims.
Wilson v. B.F. Goodrich, 292 Ore. 626, 629, 642 P.2d 644 (1982).
Under Oregon law, comparative fault requires the jury to consider the conduct of the respective parties
and apportion fault for the damages accordingly. Dahl v. Bayerische Motoren Werke (BMW), 304 Ore. 558, 568-
569, 748 P.2d 77 (1987).
A plaintiff ’s incidental carelessness or negligent failure to discover or guard against a product defect
is not a defense to a products liability claim. Hernandez v. Barbo Machinery Co., 327 Ore. 99, 109, 957 P.2d 147,
153 (1998); Findlay v. Copeland Lumber Co., 265 Ore. 300, 303, 305, 509 P.2d 28 (1973); Sandford v. Chev. Div.
Gen. Motors, 292 Ore. 590, 610, 642 P.2d 624 (1982).
However, other forms of negligent conduct by a plaintiff, such as unreasonable misuse of the product,
or unreasonable use despite knowledge of a dangerous defect in the product and awareness of the risk posed by
that defect, are defenses to a strict products liability action. Hernandez, 327 Ore. at 109.
XXXIX. Pennsylvania
Jane North
Deasey, Mahoney, Valentini & North
ACCEPTANCE OF THE DOCTRINE: A parent’s own negligence bars his or her recovery, but such neg-
ligence is not imputed to the child
Under Pennsylvania common law, a parent’s recovery for an injury sustained by his or her child will be
barred, or reduced, where the parent’s own negligence contributed to the injury. Connelly v. Kaufmann & Baer
Co., 37 A.2d 125 (Pa. 1944); Pinter v. James Barker, Inc., 116 A. 498 (Pa. 1922). However, the parent’s negligence
will not be imputed to the child for purposes of diminishing or barring the child’s own action. Greene v. Basti,
391 F.2d 892 (3d Cir. 1968).
APPLICATION OF THE DOCTRINE: Comparative Negligence Principles
Pennsylvania courts have held that it is the duty of a parent to exercise reasonable care to protect and
to keep the child from dangers that, because of the child’s years and discretion, the child is unfitted to cope, and
this duty is greater the more helpless the child is. Reardon v. Wilbur, 272 A.2d 888 (Pa. 1971); Goldberg v. Phila.
Rapid Transit Co., 149 A. 104 (Pa. 1930); Horneman v. Hills Dept. Store, 8 Pa. D. & C.4th 361 (1990).
Parents generally are presumed to have given a child reasonable and proper care, and the mere pres-
ence of a young child in a place of danger, such as a street or highway, is itself insufficient to establish parental
negligence as a matter of law. Goldberg v. Phila. Rapid Transit Co., 149 A. 104 (Pa. 1930); Dattola v. Burt Bros.,
Inc., 135 A. 736 (Pa. 1927); Miller v. Leljedal, 455 A.2d 256 (Pa. Commw. 1983). Reasonable care required by the
parent is defined as that care which persons of reasonable prudence, of the same class, with the same means,
ordinarily would exercise and deem adequate to protect their children from danger. Del Rossi v. Cooney, 57 A.
514 (Pa. 1904). The test is what an ordinarily reasonable and prudent parent would have done in similar cir-
cumstances. Miller v. Leljedal, 455 A.2d 256 (Pa. Commw. 1983).
Under principles of comparative negligence in Pennsylvania, a parent’s negligence in his or her
cause of action is no bar to recovery where such negligence was not greater than the causal negligence of the
defendant or the combined defendants, but instead reduces the parent’s recovery in proportion to the amount
of negligence attributable to the plaintiff. 42 Pa. C.S. §7102.
BURDEN OF PROOF: Burden of Proof Rests Upon the Defendant
A parent is not required to disprove comparative negligence; rather, the burden of proving compara-
tive negligence rests with the defendant. Goldberg v. Phila. Rapid Transit Co., 149 A. 104 (Pa. 1930).
QUESTION OF LAW OR FACT: Generally a Question of Fact
Generally, in a parent’s action to recover for injuries to a child, it is a question for the jury whether
the minor, or the parents, were comparatively negligent. Connelly v. Kaufmann & Baer Co., 37 A.2d 125 (1944).
Accordingly, where a parent permits a minor child to place himself or herself in danger, the determination of
whether this was negligence is usually one of fact for the jury to determine, and the same is true with the deter-
XLIII. Tennessee
Tim Peeples
Daniel Coker Horton & Bell, P.A.
ACCEPTANCE OF THE DOCTRINE: Yes, but only in limited situations.
Parental immunity in Tennessee has been limited to conduct that constitutes the exercise of parental
authority, the performance of parental supervision and the provision of parental care and custody. Broadwell
v. Holmes, 871 S.W. 2d 471, 476-77 (Tenn. 1994). Prior to 1994, the doctrine of parental immunity barred all
actions in Tennessee for injuries to a minor resulting from a parent’s negligence. In Broadwell, the Tennessee
Supreme Court noted that the application of parental immunity depended upon both the nature of the acts and
the context in which the parent performed the acts. The operation of an automobile, for example, would usu-
ally fall outside the scope of parental immunity and would not be protected in this jurisdiction. Id. However, the
Supreme Court found the Court of Appeals had erred when it created a bright-line rule prohibiting the applica-
XLIV. Texas
Shelby Bobosky
The Drinnon Law Firm, PLLC
ACCEPTANCE OF THE PARENTAL NEGLIGENCE DOCTRINE: Yes, partially.
Under Texas law, a parent’s negligence cannot be imputed to a child so as to preclude an action by
the child or for its benefit against a third party whose negligent act has injured the child. Gulf Production Co. v.
Quisenberry, 97 S.W.2d 166 (Tex. 1936). In other words, the parental immunity doctrine bars legal action by a
child against his parents, and that child’s recovery from other defendants is not reduced by his parents’ percent-
age of negligence. See Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21 (Tex. App. -- Tyler 2003, pet. denied);
Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 938 (Tex. 1992).
However, in an action for wrongful death of a minor, or in a claim for medical expenses by a parent, the
parents’ own negligence will bar recovery if found to be over 50 percent. Tex. Civ. Prac. & Rem. Code §71.001
(Vernon 2008).
APPLICATION OF THE DOCTRINE: Proportionate Responsibility
Texas applies a statutory comparative-negligence wherein a finding of contributory negligence against
the plaintiff no longer automatically bars recovery, but rather reduces the plaintiff ’s recovery in proportion to
his or her negligence unless Plaintiff ’s responsibility is greater than 50 percent. Kroger Co. v. Keng, 23 S.W.3d
347, 350 (Tex. 2000).
Section 33.001 of the Texas Civil Practice and Remedies Code provides that “a claimant may not
recover damages if his percentage of responsibility is greater than 50 percent.” Tex. Civ. Prac. & Rem. Code
§33.001 (Vernon 2008). “If the claimant is not barred from recovery under Section 33.001, the court shall
XLV. Utah
Michael C. Osborne
ArcherNorris
ACCEPTANCE OF THE DOCTRINE: No.
The Supreme Court of Utah approved of the trial court’s decision that the negligence of parents could
not be imputed to a child who is injured and then sues for damages. Jensen v. Utah Ry. Co., 72 Utah 366, 389-
390, 270 P. 349, 358 (1927).
XLVI. Vermont
Natasha Alcivar
Hinshaw & Culbertson
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Vermont law, a parent’s negligence cannot be imputed to a child so as to limit or preclude recov-
ery in an action by the child or for its benefit against a third party whose negligent act has injured the child. In
addition, a third party claim cannot be brought against the child’s parents for their negligence (e.g. for improper
assembly, installation, or failure to follow instructions and heed warnings) in this context, because Vermont does
not recognize a right to contribution between joint tortfeasors. However, if the parent brings a claim seeking to
recover damages sustained by the parent as a result of injury to a child, the defendant can raise the comparative
negligence of the parent as a defense. It is important to note that under Vermont law, contributory negligence is
retained as a bar to recovery where the Plaintiff’s negligence exceeds 50 percent of the total causal negligence.
The terms “comparative negligence” and “contributory negligence” are used interchangeably. Accordingly, in an
action by a parent for his or her benefit, a counterclaim would not be necessary because, under Vermont law, if
the parent was found to more than 50 percent at fault, his or her recovery would be barred. See Matson v. Kehoe,
979 F. Supp. 1031 (D.Vt. 1997); Ploof v. Burlington Traction Co., 41 A. 1017 (Vt. 1898).
APPLICATION OF THE DOCTRINE: Causation.
As explained in Matson, the Court noted that the Defendants were “not foreclosed, of course, from
demonstrating at trial that the parents’ conduct was the proximate cause of [the child’s] injuries, and that the
Defendants’ negligence, if any, was not a substantial factor in bringing about her injuries.” 979 F. Supp. at 1038
n. 2; see also Lee v. Wheeler, 298 A.2d 851 (Vt. 1972) (contributory negligence does not bar or reduce recovery
unless it is the proximate cause or a part thereof of the accident).
BURDEN OF PROOF:
“The plaintiff bears the burden of proving that the product is defective, and that its defect was the
proximate cause of harm.” Webb v. Navistar Int’l Transp. Corp., 692 A.2d 343, 346 (Vt. 1996).
“A fundamental tenet of the comparative negligence doctrine is that the defendant, in asserting such a
defense, bears the burden of proving by a preponderance of the evidence that the plaintiff was negligent and that
such negligence was a proximate cause of the plaintiff’s injuries.” Barber v. LaFromboise, 908 A.2d 436 (Vt. 2006).
XLVII. Virginia
Sandra G. Ezell
Bowman and Brooke LLP
ACCEPTANCE OF THE DOCTRINE: No. Negligence of parents is not imputable to the child.
Virginia is a contributory negligence state. Virginia does not apply the doctrine of comparative fault
and does not balance the negligence of the parties in determining liability. See Smith v. Va. Elec. & Power Co.,
204 Va. 128, 133, 129 S.E.2d 655, 659 (1963). Rather, under Virginia’s contributory negligence doctrine, a plain-
tiff ’s failure to exercise ordinary care for his own safety, which proximately contributes to his injury, completely
bars his recovery, regardless of any negligence on the defendant’s part. See Ford Motor Co. v. Bartholomew, 224
Va. 421, 432, 297 S.E.2d 675, 680-81 (1982).
In Virginia, “the negligence of the parent or other person having custody and care of an infant will not
be imputed to the infant.” American Tobacco Co. v. Harrison, 27 S.E.2d 181, 185, 181 Va. 800, 809 (Va. 1943) (cit-
ing Tugman v. Riverside & Dan River Cotton Mills, 132 S.E. 179, 144 Va. 473 (Va. 1926). As the American Tobacco
court explained, the issue is really one of proximate cause.
Of course, it is essential to a recovery in any case that negligence on the part of the defendant
be shown. But when that is proven in a suit by the child, the parents’ negligence is no defense,
because it is regarded not as a proximate but as a remote cause of the injury. And the reason lies
in the irresponsibility of the child, who, itself being incapable of negligence, cannot authorize
it in another. It is not correct to say that the parent is the agent of the child, for the latter cannot
appoint an agent. The law confides the care and custody of a child non sui juris to the parent, but
if this duty be not performed, the fault is the parent’s, not the child’s. There is no principle, then, in
our opinion, upon which the fault of the parent can be imputed to the child. To do so is to deny to
the child the protection of the law.
Id. (internal citations omitted). See also Evans v. Evans, 695 S.E.2d 173 (Va. 2010).
L. Wisconsin
John Monical
Paul Weltlich
Lawrence Kamin Saunders & Uhlenhop LLC
ACCEPTANCE OF THE DOCTRINE: No, except to limit a parent’s recovery in Wrongful Death and/or
for Medical Expense.
The Parental Negligence Doctrine v Shirley v 463
In Wisconsin, contributory negligence on the part of a parent affects the recovery of the parent in
wrongful death cases and in claims for the child’s medical expenses. It is not imputed to the child so as to bar
the child’s suit for injuries and damages.
APPLICATION OF THE DOCTRINE: Statutory Comparative Fault & Contributory Negligence in Lim-
ited Circumstances
Wisconsin’s comparative negligence statute, Wis.Stat. §895.045, applies to actions for death, per-
sonal injury, or property damage. Under this statute, a plaintiff may recover damages against any particular
defendant when his or her negligence is not greater than the negligence attributed to that defendant. Wiscon-
sin applies an individual comparison approach. Accordingly, when multiple defendants are involved, to deter-
mine liability, the negligence of each defendant is separately measured against any negligence attributed to the
plaintiff, rather than the combined percentage of negligence attributed to all persons against whom recovery is
sought. Wis.Stat. §895.045.
In 1995, the comparative negligence statute was amended to provide that the liability of each
defendant found to bear less than 51 percent of the total causal negligence of an accident is limited to the per-
centage of negligence attributed to that defendant. By comparison, a person found to bear 51 percent or more
of the causal negligence is jointly and severally liable for all damages, reduced by the causal negligence attrib-
uted to the plaintiff. Wis. Stat. §895.045(1).
The 1995 amendment does not apply to strict products liability actions. In those actions, a compari-
son will be made under common law between the fault of the product and the negligence or assumption of the
risk of a plaintiff, and the plaintiff ’s allowable damages are reduced by the percentage of fault attributed to the
plaintiff. However, bearing less than 51 percent of the fault does not prevent joint and several liability for all
damages. Fuchsgruber v. Custom Accessories, Inc., 244 Wis.2d 758, 628 N.W.2d 833 (Wis. 2001); Industrial Risk
Ins. v. American Engineering Testing, Inc., 318 Wis.2d 148, 769 N.W.2d 82 (1st Dist. 2009).
Medical Expenses:
Under Wisconsin law, parents are directly responsible for medical expenses of an injured child and,
accordingly, a claim to recover for medical expenses belongs to the parent, not the child. Because the plain-
tiff is the parent, the comparison of negligence for medical expenses is directly between the parent and the
defendant. Buckett v. Republic Ins. Co., 101 Wis.2d 634, 305 N.W.2d 156 (Ct. App. 1981); Frederick v. Merrill Area
Public Schools, 126 Wis.2d 509, 375 N.W.2d 219 (3rd Dist. 1985) (unpublicized opinion).
Wrongful Death:
Wisconsin’s wrongful death statute provides that “the aggregate of the damages … shall be diminished
under [the contributory negligence statute] if the deceased or person entitled to recover is found negligent.”
Wis. Stat. §895.04(7). A parent’s negligence will therefore diminish that parent’s recovery for wrongful death
of a child, but will not affect the non-negligent parent’s share. Chang v. State Farm, 182 Wis.2d 549, 558-59, 514
N.W.2d 399, 402 (Wis. 1994).
Other Damages:
In child injury cases, claims for damages other than medical expenses continue to belong to the child.
Accordingly, the parent’s negligence is considered only to the extent that it reduces a defendant’s overall per-
centage below the 51 percent threshold. However, under Wisconsin law, a parent also enjoys a limited immunity
from suits of the child where the alleged negligent act involved: (1) an exercise of parental authority over the
child; or (2) an exercise of ordinary parental discretion with respect to the provision of food, clothing, hous-
ing, medical and dental services, and other care.” Goller v. White, 20 Wis.2d 402, 413, 122 N.W.2d 193, 198 (Wis.
1963); Lemmen v. Servais, 39 Wis. 2d 75, 77-78, 158 N.W.2d 341, 343 (Wis. 1968). A parent acting in these situ-
LI. Wyoming
John W. Grund
Grund, Dagner & Nelson, P.C.
ACCEPTANCE OF THE DOCTRINE: Yes, partially.
Under Wyoming law, a child has no right of action against parent for simple negligence, except in cases
involving the operation of an automobile. Dellapenta v. Dellapenta, 838 P.2d 1153 (Wyo. 1992) (superseded by
statute regarding seatbelt use, W.S. §31-5-1402); Ball v. Ball, 269 P.2d 302 (Wyo. 1954); Huff v. Shumate, 360
ESupp. 2d 1197 (Wyo. 2004).
Wyoming courts will also waive parental immunity in cases where parental actions “disclose so clear
an invasion of the rights of the child as tending to bring discord into the family and to disorganize its proper
government,” Ball, 269 P.2d at 314, although it is unclear whether a parent’s willful and wanton misconduct is
sufficient.
In 1954, the Wyoming Supreme Court observed that “the judiciary should be reluctant to encourage
actions as maintainable between children and their parents unless sanctioned by the statute law, or where they
disclose so clear an invasion of the rights of the child as tending to bring discord into the family and to disorga-
nize its proper government.” Id. at 314.
Thereafter, the Court in Oldman v. Bartshe, 480 P.2d 99 (1971), reversed a trial court’s order dismissing
an action based on parental immunity. In Oldman, a child was killed in an auto accident allegedly caused by his
father’s intoxication. The court reversed, explaining that “it is possible that willful and wanton disregard of the
wellbeing of a child, resulting in injury, could so invade his rights that discord and disorganization would result
in the family unit.”
APPLICATION OF THE DOCTRINE: Comparative Fault
This doctrine is applied through the principle of apportionment of fault. According to W.S §l-l-109(b),
contributory fault may not bar recovery by any claimant as long as the plaintiffs contributory fault is not more
than fifty percent of the total fault of all actors, though the recovery is reduced in proportion to the amount of